District Attorney Tony Rackauckas has had ample opportunity to pursue officer-involved shootings during his seven years in office; as the Weeklyreported last year, of the more than 50 officer-involved shootings that occurred in the past five years, none resulted in a prosecution (see "The Year of the Gun," Jan. 9, 2004).

The fact that Rackauckas has refused until now to press charges against police officers involved in questionable shootings has become an issue in the Chmait case. Bates' defense attorney has filed a motion to quash the indictment, claiming the DA sought it simply to gain political support among Orange County's Arab Americans.

The shooting took place early on Feb. 5 outside Bates' Mission Viejo apartment. Chmait and his friends were on their way to a nearby party when Bates, off-duty and wearing a bathrobe, rushed out of his apartment and, holding a pistol, confronted them. Witnesses say Bates was upset about noise from the party, approached the three young men with his pistol and law-enforcement badge, and shouted, "You want to fuck with a cop?"

Instead of backing away, the group walked toward Bates. That was a big mistake: during the altercation that ensued, Bates allegedly pistol-whipped one of Chmait's friends. What happened then is unclear—except that all sides agree Bates shot Chmait in the head at point-blank range.

A team of Orange County sheriff's detectives dispatched to the scene made no arrests, citing lack of evidence.

The Weeklyfirst reported that Rackauckas had forwarded the case to the grand jury after meeting with the victim's family and Tareef Nashashibi, a Chmait family friend and chairman of the Arab American committee of the Orange County Republican Party (see "Indictment Imminent?" March 11).

"These charges are trumped up," said Leo Terrell, Bates' lawyer. "Rackauckas punted this case to the grand jury because an Arab American group sat down with the DA and pressured him. Rackauckas is a politician and is trying to please a potential contribution base. That is not going to work here."

Terrell claimed Bates acted in self-defense after being attacked by Chmait and his friends, who he says badly beat his client after provoking him with racial slurs. "This case is about an African-American Homeland Security officer who comes out of his house, and a group of Arab-American youths used racial epithets and assaulted him," he said.

"Dirty racial names were being used against my client. That's the dirty secret being kept out of the press," said Terrell, a prominent Beverly Hills lawyer who usually sues cops in shooting cases.

Terrell asserted that Bates didn't go out of his house with a gun looking for a fight. "He came out because he heard noise and a cry for help," Terrell said. "He thought someone was being assaulted. My client was interviewed by the OC Sheriff's Department and released. They said there was no evidence to arrest him or convict him. If this man was suspected of any crime, would he have been released?"

Terrell added that he has filed a discovery motion for the Sheriff's Department's report of the shooting, which he said includes photographs proving Chmait and his friends assaulted Bates. "My client's face was badly bruised; his lip was as big as a house," he said. "His face was bloody. He was in pretty bad shape for a guy with a gun in his hand."

Susan Schroeder, a DA spokesperson, refused to discuss details of the case, citing the pending prosecution. But she countered Terrell's claim that Rackauckas has never filed charges in any officer-involved shooting cases. "We file criminal complaints against law enforcement all the time," she said. Pressed for examples, Schroeder said such charges ranged from improper use of pepper spray to theft and drunk driving.

But not shooting. Indeed, David Brent, head of the DA's homicide unit and the prosecutor handling the Chmait case, said he couldn't recall a single officer-involved shooting case that has resulted in charges being filed by his office.

"I can think of one or two cases seven or eight years ago, and there were no indictments on those, but none in recent years," Brent said.

But that's irrelevant, he continued. "Some people are calling this an officer-involved shooting. I don't view this as an officer-involved shooting. This was a neighbor-involved shooting. It had nothing to do with Mr. Bates' status as a customs officer or his job."

Brent claimed there is nothing unusual in handing such a case to the grand jury.

"To me, it's just a case where there are a lot of heightened emotions and different feelings," he said. "We wanted the grand jury to say whether Mr. Bates should be held responsible or not. Nineteen grand jurors said he should be held responsible—not for murder, but manslaughter. And that's the case I will present to a jury. I fully expect we will get a conviction."